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Monday, April 4, 2016

Peter Menell on IP and Social Justice

Posted by
Lisa Ouellette

Professor Peter Menell recently posted a new essay, Property, Intellectual Property, and Social Justice: Mapping the Next Frontier, from a conference celebrating Professor Joseph Singer. As he explains, "[t]he ascendency of intangible resources profoundly affects social justice—from access to life-saving genetic information to the control of knowledge dissemination, creative freedom, group identity, and, increasingly, the distribution of wealth." His essay canvases a huge array of topics in just 52 pages, and it is a great review of the literature in this area. (The essay is worth downloading even just for the collection of key works in footnote 13, from scholars including Anupam Chander and Madhavi Sunder and Amy Kapczynski.)

For each of the four main bodies of IP law, Menell examines the law's internal legitimacy (is IP the best way of achieving the law's goals?) and external effects (how does the law affect various social justice considerations?). For example, he compares patent law with the other legal institutions that Daniel Hemel and I discuss in Beyond the Patents–Prizes Debate, and he reaches the same conclusion we do: each institution has limitations, and "the patent system works best in conjunction with other institutions." On patent law's external effects, Menell notes the troubling implications of patent law's use of price as an allocation mechanism for certain technologies such as medicines. He notes that this does not require one to reject the patent system—rather, it highlights the need in certain areas for non-patent institutions such as government health care policies. (Of course, as Ted Sichelman nicely summarizes, we think the negative distributional effect of patents will be replicated by any system that taxes users of the technology—marginal cost pricing can only be obtained by requiring consumers to broadly subsidize each other's technology use, which is the whole idea of government health care and other health insurance programs.)

Menell continues this analysis for the other main areas of IP law. For trade secrets, he argues that their internal validity "has long been widely accepted," but that "the widespread use of routine, blanket non-disclosure agreements to cover all proprietary information within an enterprise [such as illegal or unethical behavior] raises serious social justice concerns."

For copyrights, he argues that their internal validity have been "tarnished" by "a confluence of factors": the "extension of copyright duration," "the dismantling of formalities," the expansion of "subject matter to all forms of expressive works, including architecture and computer programs," and "the strengthening of infringement remedies." And he explains how "the rights and interests of authors and audiences clash in multiple non-utilitarian dimensions," including the dignitary interests of authors, the long U.S. history of promoting access to knowledge, and the value of free expression for democratic debate and human flourishing.

Finally, trademarks "safeguard the integrity of the marketplace," and Menell argues that "it is difficult to quarrel with trademark law's basic design and functioning" at the level of internal validity. He acknowledges that dilution protection "risks undue power over symbols, but these areas of law have been significantly circumscribed." (I don't think all trademark scholars have such an optimistic view.) But he notes that trademark law "can interfere with freedom of expression" and "can undermine moral, dignitary, and group interests" (as in cases involving the "Washington Redskins" and "The Slants").

Menell's essay concludes with some "macro social justice issues." He worries "that the growing importance of information resources in the economy adversely affects the distribution of income and wealth" in ways that might not best be fixed by "[p]rogressive taxation alone." And the elite group that is enriched by the information age reflects "historical gender and race biases." But at the same time, "the need for rapid innovation to stem climate change and public health threats grows ever more apparent, creating a tradeoff for compromising IP policy."